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Going Dutch

The Netherlands Commercial Court has been set up as an English language court to deal with international commercial matters. It is likely to be very attractive post-Brexit especially if there are difficulties enforcing judgments of English courts in the EU following a hard Brexit. The court will open on 1 January 2018 and the draft procedural rules have been published. The new rules apply to proceedings in the Netherlands Commercial Court (NCC) and the Netherlands Commercial Court of Appeal (NCCA) both based in Amsterdam.

Jurisdiction

An action may be started in the NCC where it is a civil or commercial matter not subject to the exclusive jurisdiction of any other court, has an international aspect, the parties have designated the Amsterdam District Court as the forum and the parties have agreed the proceedings will be in English governed by these procedural rules. The wording suggested by the NCC to be put in contracts is as follows:

’All disputes arising out of or in connection with this agreement will be resolved by the Amsterdam District Court following proceedings in English under that Court’s Rules of Procedure of the Chamber for International Commercial Matters (Netherlands Commercial Court or NCC). Application for provisional measures, including protective measures, available under Dutch law may be made to the NCC’s Preliminary Relief Judge in proceedings in English in accordance with the Rules of Procedure of the NCC.’

Appeals from the NCC can be made to the NCCA.

Language

The language of the court will be English. The defendant can require that the proceedings are in Dutch unless the defendant has no interest in requesting this. However, Dutch case law and scholarly articles in Dutch, German or French need not be translated.

Procedure

The court will apply Dutch Procedural Law (DCCP) and the substantive law by applying Dutch private international law.

Representation

Parties must be represented by a Dutch advocaat.

Submitting Documents

The NCC/NCCA portal is the only way of communicating with the court unless the court orders otherwise for example exhibits. The parties may only speak to the judge at a hearing or conference.

Time limits

The court must wherever possible prevent any unreasonable delay. Time limits are set by the court. These will usually be six weeks for a claim or a defence. Extensions are only given for compelling reasons.

Judges

Cases are heard by a three panel judge except in the case of summary proceedings which will be heard by a single judge.

Making a claim

The claim is made by an ’originating document’ which must specify the claim and its grounds. It should also specify any known defence and its grounds. Until the Court sets the date for giving final judgment the claimant may amend its claim. The Court may disallow any amendment.

Defending a claim

In summary proceedings the defendant must attend court and in other cases notify the court in time of its lawyer. The defendant must submit a defence within the applicable time limit and give its procedural and substantive defence. It must also state the names of witnesses and evidence it intends to use. The defendant can make a counterclaim.

Interim matters

Applications for interim decisions can be made in the originating document or by subsequent applications. Emergency applications can be made outside court hours.

Hearings

The court can order a hearing or case management conference at any time. If the parties request or agree the court can give its decision without a hearing. The court will give a date and time for the hearing and the time available and the judges who will deal with the case. Hearings are normally in public. Parties must be represented by a lawyer at the hearing. The court may direct that the parties submit their submissions in writing in advance.

Judgment must be given in public. The judgment will be uploaded to the portal website.

Evidence

The court may order a party to explain its assertions or to disclose documentation. If a party refuses to provide documentation the court may draw an adverse inference. Witnesses may only give evidence if they have personal knowledge of the facts. Witnesses will be required to swear an oath. Witnesses may be questioned by the parties. The court may direct that a question is not answered

The court may direct that an experts report is prepared. The Court will appoint the expert and fix the amount which must be deposited to pay the expert and the party or parties to pay it.

Costs

The parties are charged a court fee. It must be paid within four weeks. It is likely to be €15,000.

The parties can agree all costs in advance of proceedings or no later than the day the court delivers its main judgment. The claimant must notify the court of any agreement. In the absence of agreement on costs the court will apply Dutch law in respect of costs subject to what is stated on the NCC/NCCA website. Third party funding of costs is permitted.

The losing party will usually pay the costs and the court fees already paid by the other party. The English indemnity principle does not apply. Costs which can be awarded against the losing party in the NCC are divided into 3 levels, ’simple = €2,000’, ’average = €4,000’ and ’complex = €8,000’. You generally pay a charge as above for every step in the procedure, but ‘two charges’ for an oral hearing in the main action. So in an average case a successful claimant who served an originating document, had a case management conference and attended the main hearing could claim costs against the defendant of €4,000 + €4,000 + €8,000 = €16,000, together with the court fees of the other party. All his other costs would be down to him.

Who is likely to be interested in using the Netherlands Commercial Court?

Parties who want to avoid the high open ended legal costs of their opponent should they lose. This will especially be the case when legal fees could exceed the value of the claim. Insurers who will usually be defendants may want to make claims under their policies subject to the NCC.

Parties who are able to agree costs at the outset as between themselves.

Parties who want faster justice even though this may potentially not be as thorough as the English courts.

Medium value claims which are not particularly complex. This may be the starting point until the court becomes established and parties have more confidence.

Parties who would before have used the English courts but are concerned Brexit will mean problems with enforcement of judgments in the EU post Brexit.

David Anderson is solicitor and director at Sykes Anderson Perry Limited solicitors, London.

Please note that the information herein is of a general nature and you should not act or refrain from acting on it without professional advice on the specific facts of your case. No liability is accepted by the author or Sykes Anderson Perry Limited in respect of this article. This is a basic outline only and is intended only as a general guide.

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The Netherlands Commercial Court can feel reassured that it won't be assailed by a flood of Dutch-speaking litigants, traipsing from London and wanting to litigate in an English language court according to Dutch Procedural Law or Dutch private international law law with a Dutch advocate etc. If anything, this is an advertisement of all the reasons why you'd want to stay in London - where you know what you're getting. Why risk it ?

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